It is commonly misconceived that blogging and social media are regulation-free publishing forums. In fact, most of the laws that apply to traditional publishers apply equally to blogs and, sometimes, social media posts. Particularly important is the prohibition on undisclosed paid promotion in editorial content, also known as “advertorial” or “surreptitious advertising”.

Readers will be familiar with advertorial content in printed publications: it is usually surrounded by a border that marks it apart from proper editorial content and is headed by phrases like “Commercial Feature” or “Advertisement”. Whatever method is used by the publisher to differentiate it from other content, it is usually clear that someone has paid for it to appear.

Marking such content apart is good, ethical editorial practice in the interests of consumer protection. The Advertising Standards Authority of Ireland code of standards requires this:

Advertisement promotions should be designed and presented in such a way that they can easily be distinguished from editorial material.

The ASAI is an industry-run, self regulatory body and can only impose sanctions on its own members. It is sometimes accused of being toothless but most major companies and advertisers tend to comply with its rulings. However, because it is an industry body not backed by legislation and which can impose sanctions on members only, it is commonly believed that there is no specific legal prohibition on this conduct. An article in the Irish Independent earlier this week said:

There are no strict guidelines for bloggers and influencers when featuring sponsored content, but according to the Advertising Standards Authority of Ireland, sponsored online content “must clearly state that the material is a marketing communication”.

This is not the case, failing to identify paid editorial content is a criminal offence.

The relevant law is section 55(1)(q) of the Consumer Protection Act 2007 which states that, among other practices, a trader shall not “use editorial content in the media to promote a product (if a trader has paid for that promotion) if it is not made clear that the promotion is a paid promotion”.

The Consumer Protection Act implements the European Union Unfair Commercial Practices Directive which categorises this type of advertising as conduct that “shall in all circumstances be regarded as unfair“. This means that it is “blacklisted”: no case-by-case assessment is necessary. (Surreptitious advertising on television is prohibited elsewhere by the Television Without Frontiers Directive.) It might not be sufficient to merely identify advertorial with a simple phrase or logo: the Hungarian Competition Authority found that editorial content which included a slogan “Sponsored by Vodafone” was not enough to identify the nature of the arrangement between the publisher and the advertiser.

The prohibtion applies to the “media”, which is not defined but it appears widely accepted that this includes blogs and even social media accounts. In the UK, for example, the then Office of Fair Trading carried out a targeted campaign some years ago requiring PR companies and celebrities to be transparent about their endorsements. The basis of this clamp down on undisclosed advertising was the UK equivalent of section 55 of the Consumer Protection Act.

The penalties include a fine of up to €4,000 on summary conviction (or €60,000 on indictment) and/or jail. The Act provides for increased fines on subsequent conviction and daily fines if the conduct continues after conviction. The Irish courts tend not to impose significant fines for consumer law breaches of this nature and anyone prosecuted for such an offence in Ireland is likely to face a fine in the hundreds of euros if convicted or could benefit from an alternative to conviction (certainly for a first offence). Consumers can also bring an action for damages, though it might be difficult to establish loss.

It seems unlikely that the Commission will become active in this area unless it receives complaints. However, anyone can apply directly to the Circuit Court or the High Court for an order to stop someone who is in contravention of the prohibition, perhaps making private enforcement by competitors more likely than by the Commission.

Restrictive rules on advertising by solicitors contain important exemptions to protect the right of solicitors to comment on legal and other issues. Is the Law Society interpreting the rules in a way would restrict those exemptions and increase their oversight of comment by solicitors?

Advertising by solicitors is very tightly restricted by the law and regulated by the Law Society of Ireland. I have written about some of the restrictions before. Most of the rules regulate the tone of advertising; what might be termed “ambulance chasing” through advertising, for example, is not possible in Ireland. None of the UK-style personal injury ads you might see on daytime television are possible in Ireland. Even this, quite mild and professional, form of ad would most likely result in trouble for an Irish solicitor daring to upload it.

The Irish rules may or may not be a good way to regulate advertising by lawyers. They do, at the very least, clash with the demand that the professions be more competitive. But the rules do recognise a very important exemption: comment. Exemptions are included in the Solicitors Advertising Regulations that should ensure no overreach in their application that would regulate or prohibit genuine comment.

The Regulations only apply to an “advertisement”, defined as being almost any type of communication “which is intended to publicise or otherwise promote a solicitor in relation to the solicitor’s practice” but “excluding a communication which is primarily intended to give information on the law”. So, a communication must be both intended to promote a solicitor and not be primarily intended to give information on the law for the Regulations to apply.

This is quite a large exemption and obviously seeks to make a distinction between traditional advertising and, for example, news updates or comment. If a communication by a solicitor is primarily intended to give information on the law it is not an advertisement, is not governed by the extensive rules and restrictions contained in the Regulations and, importantly, is not subject to oversight by the Law Society. That oversight is significant: a breach of the Regulations is a disciplinary matter which can potentially have serious consequences for the solicitor involved.

Cartoons: prohibited content.

One catch-all provision in the Regulations, for example, prohibits an advertisement which is likely to bring the solicitors’ profession into disrepute. It is quite difficult to know precisely what is covered by that prohibition (the Law Society does not publish decisions made under the Regulations) but it is quite easy to envisage an individual or organisation who dislikes a communication from someone who happens to be a solicitor making a complaint to the Society under this heading of the Regulations.

Last Friday the Law Society published a surprising practice note on advertising. The headine refers to legal advice columns, so you might think it applies only to regular pieces in local papers where readers send in questions, for example. It suggests that where the solicitor is paying to have the column appear or is simply reproducing the content, the exemption does not apply and the column might be an advertisement. This is fair enough: such a column should be identified as advertorial or a commercial feature by the publisher. In fact, paying for editorial content to appear in a newspaper without making it clear to readers that it is a paid feature is a criminal offence for all businesses, not just solicitors.

However, the practice note makes a number of significant leaps when interpreting the Regulations. It refers to an exemption “set down in regulation 12” and refers to the contents of regulation 12 as being a test. In fact, the exemption is contained in the definition of “advertisement” in regulation 2(a). Regulation 12(a) adds to or gives examples of the exemption, it does not limit it. Paragraphs (b) and (c) do limit the exemption by clarifying that the distribution of free legal books may, for example, constitute advertising even though the publication might be information on the law.

The danger in this practice note, which one must assume the Law Society will apply in interpreting the Regulations, is that it sets a far more restrictive scope to the comment exemption in the Regulations. The paid advice column is not a difficulty, but many solicitors now publish blogs, for example, and some pay to do so. Many solicitors have websites which may constitute advertising in their entirety or may include information on the law but either way are likely to be paid for by the solicitor.

Where an article does not satisfy this test, that is, if it has been paid for by or on behalf of the solicitor, or where it has enjoyed repeated publication, the article is subject to the regulations in the normal way.

I do not accept this. Rather, the article might be subject to the Regulations. This blog is published using WordPress.com who I pay for mapping a domain name to it. Is it a series of legal articles written by me where part of the space in which it is published is paid for by me? Possibly, depending on your view of domain name mapping to a free blogging platform and whether the former constitutes “space” in which the blog is published. Is it an advertisement? Certainly not. It is not intended to be and it constitutes information on the law.

Regulation 12 is not a “test” of whether or not a communication by a solicitor is commercial or non-commercial. The test is in the definition of “advertisement” itself. The practice note is, perhaps inadvertently, further evidence of how the the Regulations are out of date. These anachronistic advertising rules do not appropriately accommodate or regulate blogging, social media or other contemporary means of communication.

The Regulations are already the subject of infringement proceedings by the European Commission who allege that they breach the Services Directive, which required that Member States ease restrictions on advertising by professionals. Despite this, the Law Society has recently been publishing practice notes which reinforce the existing Regulations and present to solicitors an interpretation of them more restrictive than the Regulations themselves. Complete reform of the the Regulations is long overdue.

It has taken almost 20 years but the Government is finally to close the anonymity gap in domestic violence cases. I wrote about the issue in 2012.

Like all family law cases in Ireland, domestic violence applications are held in camera and the public is excluded from the courtroom. However, if a domestic violence order is breached, a criminal prosecution is brought and held in public. Anyone can attend the hearing and the media can report on it.

The reason for my post three years ago was that I had written to then Minister for Justice Alan Shatter to ask if this loophole would be changed. His response was that a miscellaneous provisions bill would change the law to provide for anonymity in domestic violence prosecutions.

Since then there has been a change of minister and a change of approach. Frances Fitzgerald recently published draft legislation which will, if passed, consolidate and amend the existing Domestic Violence Act.

This legislation would protect the anonymity of victims in much the same way as victims of sexual offences are protected. Prosecutions for breach of domestic violence orders would still take place in open court but the media would be restricted from identifying the parties (including their children) and will be guilty of an offence if they do identify the parties.

The draft does not mention a right of a victim to waive anonymity following conviction of the offender. It does say that the judge may, if the “interests of justice so require”, direct that certain information can be published and this does appear to provide for the possibility of a victim requesting the judge to direct the publication of the defendant’s name but the decision would rest with the judge.

This small amendment is one that is overdue for victims of domestic violence. However, the fact that the legislation is only at heads of bill (draft) stage suggests that it may take some time to be passed and is unlikely to become law during the lifetime of the current Dáil.

Online abuse (and now, more frequently, mobile phone based abuse) is a terrible thing. It ranges from the poison pen on steroids to far more serious, malicious, pernicious behaviour. Public figures are subject to wholesale abuse, ridicule, discrimination, misogyny and threats on social media. Private individuals are subjected to emotional abuse and severe pressures. Something should be done.

Well, a number of people have proposed something that could be done. Two members of the Labour parliamentary party have proposed separate private members bills (draft laws introduced for debate by individual parliamentarians and not by the Government itself). Pat Rabbitte’s bill targets offensive and menacing messages. Lorraine Higgins’ bill would target a wider range of abuse, including incitement to commit suicide and “revenge porn“.

Senator Higgins has, in particular, been subjected to persistent abuse which no-one should have to endure. Some of it is likely criminal within the current legal framework but requires prosecution. Some of the abuse would also violate the terms of service of the social media providers involved. A lot of it is indecent, unpleasant and unacceptable, but it would be quite a jump to criminalise it. Senator Higgins has tonight said in the Seanad that her proposed law is intended to restore online decency. Unfortunately one has to wonder if such a thing ever existed, but there is a much bigger debate to be had about whether unpleasant commentary should be criminalised.

The core provisions of Senator Higgins’ bill are a mixed bag. As Fergal Crehan points out it is quite specific in its aims and includes some good ideas.

To her credit, Senator Higgins’ bill is far more focused than anything I’ve seen proposed before, dealing in a specific way with areas which are not already covered by existing law. Though there are elements of it which I consider absolutely unacceptable, in other areas it raises issues that do need to be addressed by the legislature.

There is little doubt, though, that such a law would represent a serious chilling risk and in particular section 4 (harmful electronic communications) would appear to be a potent weapon in the hands of a public or wealthy figure who wishes to shut down certain types of comment.

It is remarkable, however, that section 5 has made it into the Bill at all. It creates another criminal offence, of not complying with a court direction. That is not controversial. What is quite amazing, however, is the type of court direction concerned. Section 5 says:

If on the evidence the court is not satisfied that the person should be convicted of an offence under section 3 or 4, the court may nevertheless make any of the following upon application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interest of justice so to order:

(a) that the person remove or delete specific electronic communication(s);

(b) that the person shares an apology or correction as the court deems appropriate in the circumstances;

(c) that the person shall not, for such period as the court may specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.

In other words: a person who is accused of an offence and is found not guilty could nevertheless find themselves being ordered to publicly apologise for the thing that they were found not guilty of and to take other steps.

Courts order people to do things all the time: after they are found guilty of a crime or where an injunction is sought. The above provision is effectively a form of injunction. It would be applied in the District Court, which doesn’t have the jurisdiction to grant civil injunctions. It would be applied by a court that has found the person in front of them not guilty.

Section 5 would make a lot of sense if it applied following conviction. Given the structural nature of the internet there is usually little point in ordering the internet service provider or social media operator to do anything, as the order will usually be unenforceable, so it is quite a good idea to order the person responsible to delete the post rather than the service provider (although there would be issues with archives and caches).

the current wording empowers the court to make orders where the accused is found not guilty of a relevant offence but says nothing about the orders that can be made where an accused is found guilty; and

a law which orders an innocent person to apologise for something or to do anything related to the crime of which they were accused would not survive a challenge.

Cameras are everywhere these days, but CCTV systems have been popular since well before the advent of camera phones. For the most part CCTV cameras are positioned in fixed, known locations such as public offices, shops or streets. A variety of covert cameras are available which have been used for many years to detect theft and fraud in particular. Any such use of covert recording should only be undertaken with caution, in specific circumstances and on the basis of advice.

This week’s Limerick Leader carries a story of covert recording in the offices of a school. It appears from the report that the reason for covert recording was that sensitive files had gone missing from the school. The full circumstances of the case are not yet known. The use of covert CCTV systems raises one set of issues, the missing files another. Missing files indicates a security breach and while a loss of personal data (likely sensitive personal data) is not specifically governed in the Data Protection Acts 1988 and 2003 a duty of care arises and the Data Protection Commissioner has published a code of practice on dealing with such breaches.

In general terms, the main considerations in using CCTV systems are the individual’s constitutional right to privacy, the Data Protection Acts and employment law. The right to privacy is somewhat undefined as no specific privacy law has been enacted (a previous bill was abandoned). Data protection legislation does not specifically refer to recording equipment or CCTV but since cameras record images of individuals, the images themselves are personal data within the meaning of the Acts and the general rules therefore apply to them. It is crucial that the collection of personal data by recording images is justified. Security would be an obvious justification but the Data Protection Commissioner is very clear that security does not justify indiscriminate recording of employees, for example.

[U]sing a CCTV system to constantly monitor employees is highly intrusive and would need to be justified by reference to special circumstances. If the monitoring is for health and safety reasons, a data controller would need to demonstrate that the installation of CCTV was proportionate in addressing health and safety issues that had arisen prior to the installation of the system.

Cameras should not ordinarily be put in locations where occupants and visitors would have a reasonable expectation of privacy. Particular sensitivity might be required in a school, for example, which is obviously frequented by minors. In addition, the Acts require that people are provided with information about the data collected about them and who has collected it. In the context of CCTV, therefore, notices should be displayed indicating that recording is taking place, who is responsible for the recording and why it is being carried out.

Use for monitoring staff performance or conduct is not an obvious purpose and staff must be informed before any data are recorded for this purpose.

Of course, there are situations in which these rules will neither work nor be appropriate and the Acts do allow for this. Indeed, the collective EU grouping of data protection regulators accepts that employers may have to resort to covert recording in order to address fraudulent or criminal behaviour and that national laws may permit this. Employment law has long recognised that covert recording might sometimes be justified. But it is clear that specific consideration must be given on a case-by-case basis to the use of covert CCTV recording. Case studies of the Commissioner demonstrate the factors which must be borne in mind.

For data protection purposes, covert recording can be justified generally only with the involvement of the Gardaí. Covert recording may be justified in the case of criminal offences, but not for performance-related monitoring.

The use of recording mechanisms to obtain data without an individual’s knowledge is generally unlawful. Covert surveillance is normally only permitted on a case by case basis where the data are kept for the purposes of preventing, detecting or investigating offences, or apprehending or prosecuting offenders. This provision automatically implies that a written specific policy be put in place detailing the purpose, justification, procedure, measures and safeguards that will be implemented with the final objective being, an actual involvement of An Garda Síochána or other prosecution authorities for potential criminal investigation or civil legal proceedings being issued, arising as a consequence of an alleged committal of a criminal offence(s).

Where CCTV footage is recorded, whether covertly or not, obligations continue to govern its retention and access to it. It is common for operators of CCTV systems to refuse to provide copies of their recordings to anyone other than Gardaí. It should be noted that, because camera footage is the personal data of the people recorded on it, those people have a right of access to it under the Acts. Again the Commissioner is quite clear:

Where a data controller chooses to use technology to process personal data, such as a CCTV system to capture and record images of living individuals, they are obliged to shoulder the data protection obligations which the law places on them for such data processing. In the matter of access requests for CCTV footage, data controllers are obliged to comply fully with such requests. Claims by a data controller that they are unable to produce copies of footage or that stills cannot be produced from the footage are unacceptable excuses in the context of dealing with an access request. In short, where a data controller uses a CCTV system to process personal data, its takes on and is obliged to comply with all associated data protection obligations.

Each time an Irish government proposes to introduce new rights for gay citizens opponents call for the right of service providers to discriminate against those citizens. They call this a “conscience clause”, which is surely a misnomer but sounds better than a “permissible discrimination” exemption.

Strangely, this is an argument which it appears must be had repeatedly. I wrote about it at the time of the Civil Partnership Bill and that post applies equally to the marriage referendum. In short: the Equal Status Act prohibits discrimination against people on the basis of sexual orientation. It was introduced fifteen years ago and it does not include a “conscience clause” (there is a limited “ethos” exemption for schools run by religious organisations). A “conscience clause” was not permitted in the Equal Status Act or the Civil Partnership Act. Why should marriage be any different?

The religious beliefs of citizens also benefit from protections and the State should not offend against those rights. But the State is entitled to insist that businesses providing services to the public respect its equality laws. The difficulty with providing an exemption from equality legislation on the basis of religious beliefs is that it would allow the law of the State, applicable to all, to be subverted by the private beliefs and opinions of self-defining groups. Indeed, if a “conscience clause” were introduced, there is no reason why it shouldn’t protect political beliefs as well as religious beliefs.

Today William Binchy is concerned that gay couples might sue a church for refusing to perform a same sex religious marriage ceremony. This is a strange concern to have. I have yet to hear of divorced people suing churches for refusing to perform a marriage, for example, but the same principles apply. Even if Mr Binchy’s fear was realised, it would mean that civil marriages would have to be registered separately from religious ceremonies. This would not require churches to perform same sex marriages.

It is striking that calls for a “conscience clause” only seem to arise in the case of gay rights. One does not hear the Iona Institute and other groups opposing the marriage referendum advocating on behalf of bakers and stationers forced to provide services to single mothers, divorcees or atheists. If one were to introduce a “conscience clause” it would have to apply to all categories of persons who benefit from protection under the Equal Status Acts and would open the gates to a wide and unpredictable range of subjectively permissible discrimination that would entirely undermine the purpose of equality legislation. Any conscience clause limited to gay rights would, in itself, constitute discrimination.

In recent years there has been a steady flow of stories about the service of court proceedings using Facebook or Twitter, for example. The media likes the novelty of these stories but there is no new law involved.

Certain court documents, particularly those which initiate a case or give notice of a hearing, must be served on the other party. The importance of service is not necessarily that the recipient is aware of the full contents of the documents served or every detail of the case. Rather:

the fundamental purpose of service [is] to give the defendant notice and sufficient warning of the proceedings that he might have to contest. (Dixon J, Royal Bank of Ireland Limited v. Nolan)

Here are some examples of service by social media:

In 2009 the UK High Court allowed service of an injunction by direct message on Twitter where the message included a link to the full text of the injunction.

In 2011 a UK county court allowed service of a court document by Facebook.

In 2012 the UK High Court allowed the service of a commercial claim by Facebook (AKO Capital LLP & another v TFS Derivatives & others [2012]).

AKO Capital is a good example because some detail is available from a note on the case by Latham & Watkins. This was a claim against a financial services broker for alleged overcharging and the broker wished to join a former employee as a co-defendant. Before granting permission for service by Facebook the Court sought assurances that the account belonged to the recipient and that he habitually checked the account. For example, evidence was given that he had recently accepted friend requests. The Court ordered that the relevant documents could be sent as pdf attachments to a private message and service was deemed to have occurred 14 days after the message was sent.

On the home front, Mr Justice Peart granted an order for service by private message on Facebook in 2012 where the plaintiff was not able to locate an address, contact number or other means of contact for the defendant apart from his Facebook account.

You’re not doing anything until the solicitor gets here.

This topic surfaces in discussions of “social media law” and similar areas of law, which brings to mind Frank Easterbrook’s “law of the horse” analogy from the mid-90s.

Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on “The Law of the Horse” is doomed to be shallow and to miss unifying principles. Teaching 100 percent of the cases on people kicked by horses will not convey the law of torts very well. (Easterbrook FH, ‘Cyberspace and the law of the horse’ 1996 U Chi Legal F 207)

Service by social media is just another form of substituted service. Most court rules internationally require that court documentation is served in a particular form, such as by personal delivery or registered post, but also provide that alternatives can be used with the permission of the court. Irish court rules provide for such “substituted service” and nothing in those long-standing rules limits the potential for service by social media.

There are separate but similar rules for each of the Irish courts (District, Circuit, High & Supreme) which provide that an application can be made to the relevant Court for service in an alternative manner where there is a reason why the usual manner cannot be used.

Like many areas of the law, new scenarios can work with old laws and no update is required. However, as can be seen from the evidence presented by the applicant in AKO Capital, the affidavit which grounds the application for substituted service should include more detail than would ordinarily be the case in a standard application. At the very least the Court should be provided with:

details of the difficulties in affecting service in the ordinary way and what efforts have been made to do it;

evidence to establish that the target social media account is owned by the person upon whom service is to be effected;

evidence to establish that the social media account is active within a reasonable period of the application; and

details of any relevant technical issues and how they will be addressed (for example, if service was by Twitter direct message, how documents will be accessed by the recipient).

Recent experience in the US suggests that some jurisdictions might not allow service by Facebook alone, for example. The rules in the US states are different from those in Ireland and certainly there is no reason why service in Ireland cannot be effected by Facebook alone, subject to the Court being satisfied on the criteria listed above. If there was a concern about the effectiveness of service, an Irish court could direct some other additional mode of service, as happened in the South African case mentioned above.

The issue of service frequently arises as a potential technicality to defeat proceedings but the Courts can retrospectively deem service to be effective, as can be seen from this reason Supreme Court decision.